‘Allegation on husband`s character amounts to cruelty`

Mumbai: Observing that an allegation made by a woman that she had seen illicit relations between her husband with his two sisters amounts to cruelty, the Bombay High Court has allowed husband`s plea for divorce on that ground.

"We are inclined to uphold the family court order of dissolution of marriage and the divorce decree on the ground of cruelty based on the allegation made by wife," Justice AR Joshi and Justice AM Khanwilkar observed on June 21.

However, the High Court quashed the family court order which dismissed the plea of the woman and daughter (names not disclosed to protect identity) for maintenance and separate accommodation, saying that it was not proper as it had not been dealt with properly.

The High Court directed the woman and her daughter to appear before Family Court again for denovo (afresh) reconsideration of their plea for maintenance and separate home.

In the letters written to her husband and also in the pleadings and oral evidence before the Family Court, the woman had made allegations against her husband having an affair with his sisters.

"In our opinion, the decree passed by the Family Court ought to be upheld on the ground of cruelty considering that the wife in a letter on May 11, 2006, to her husband stated about the incidents she had noticed indicative of illicit relations between him and sisters," the bench noted.

"However, we refrain from reproducing the allegations in this judgement. Suffice it to mention that the same are serious and disparaging remarks," the judges observed.
While the husband took the plea that the allegations had caused mental agony and cruelty to him as they were "frivolous, reckless and malafide", his wife claimed that her letter to husband was a privileged communication between a husband and wife.

She justified her stand on the ground that whatever she had stated in the letter was on the basis of her "inner feelings".

"Nevertheless, the wife in her oral evidence (cross-examination) went on to assert that she personally saw the illicit relations between the husband and the real sisters. However, there is no evidence produced to corroborate her version," the high court judges noted.

"The making of such false and frivolous allegations against the husband in the communication and reiterating the same in a written statement and in oral evidence given by the wife before the Court was bound to cause mental cruelty to the husband," the judges observed.

"It was clearly an attempt to sully the reputation not only of the respondent (husband), but also of the two sisters who were in the profession of Medicine and Law respectively. That, by itself, is a good and germane ground to dissolve the marriage between the parties and to grant decree of divorce", the judges remarked.

The judges also upheld the family court order of divorce on the ground that she had deserted her husband by leaving her matrimonial home on June 1, 2005 along with minor daughter and staying at her parents house. The court also took into account the evidence that the husband and his family pleaded with the wife twice to return home but she refused.

In the family court, the woman had claimed separate residential accommodation from her husband without forfeiting her claim of maintenance, on the ground of desertion by the husband and of abandoning her without reasonable cause and without her consent. She alleged cruelty by husband and said there were many causes which warrant her to stay separately.

However, the family court dismissed her claim for maintenance and separate residential accommodation.

The High Court, on the other hand, quashed this part of the family court order, which dismissed her claim for maintenance and separate home.

"The entire evidence on record shows that the wife is at fault. She herself treated the husband with cruelty. She has deserted him without reasonable cause. She has failed to prove her claim," the judges observed.

"As regards the maintenance amount payable to the minor daughter, the Family Court noted that she has attained majority. The fact that she was still unmarried, has not been reckoned at all. Be that as it may, we are of the considered opinion that the manner in which the Petition for maintenance and separate residence, filed by the appellant, has been decided, is undesirable," the bench opined.

"The Family Court ought to have analysed the pleadings and evidence in the context of the claim of maintenance by wife and unmarried daughter, though attained adulthood," the judges noted while quashing the lower court order.

"Considering the fact that the Family Court has not properly dealt with the issues of maintenance and separate residence, we deem it appropriate to quash and set aside the reasons and the conclusion on these two issues of maintenance and separate home," the high court judges remarked.

Instead, the parties will have to be relegated before the Family Court for reconsideration of the said matter afresh from the stage of oral arguments, on its own merits, in accordance with law, uninfluenced by any observation made in the impugned decision on the said issues, the judges observed.